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Restoration Constitutionalism and Socialist Asia Loyola of Los Angeles International and Comparative Law Review Volume 37 Number 1 Article 3 Summer 7-1-2015 Restoration Constitutionalism and Socialist Asia Bui Ngoc Son Follow this and additional works at: https://digitalcommons.lmu.edu/ilr Part of the Comparative and Foreign Law Commons, Constitutional Law Commons, Law and Politics Commons, Law and Society Commons, and the Legislation Commons Recommended Citation Bui Ngoc Son, Restoration Constitutionalism and Socialist Asia, 37 Loy. L.A. Int'l & Comp. L. Rev. 67 (2015). Available at: https://digitalcommons.lmu.edu/ilr/vol37/iss1/3 This Article is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles International and Comparative Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. NGOC_FINAL_FOR_PUB (DO NOT DELETE) 8/23/2015 3:21 PM Restoration Constitutionalism and Socialist Asia BUI NGOC SON*• Abstract: In the course of political transformation in post- communist East Europe, many nations chose to return to the constitutional order predating the domination of communism, the phenomenon scholarly characterized as “restoration consti- tutionalism.” Recently, China and Vietnam – two socialist na- tions in Asia – have witnessed the relatively similar phenome- non: past liberal constitutional values have been employed to struggle for constitutional reform, which challenges the com- munist status quo. This phenomenon is particularly striking in Vietnam in the circle of constitutional revision in the 2010s. This paper considers discourse of restoration constitutionalism in contemporary socialist Asia with particular focus on the case of Vietnam. The percept of this paper is that radical rupture is not a necessary condition for the operation of constitutional- ism; instead, it is the constitutional continuity that provides the viability of constitutionalism. Discussing the discourse of res- toration constitutionalism in China and Vietnam within this framework, the paper argues that restoration constitutionalism presents the new path of the development of constitutionalism in socialist Asia. Key words: Restoration constitutionalism, transitional constitutionalism, China Constitution, Vietnam Constitution. •*Bùi Ngọc Sơn, Ph.D (HKU) Research Fellow, Centre for Asian Legal Studies, National University of Singapore, Faculty of Law. I am grateful to Professor Andrew Harding and Professor Wang Jiangyu at the Centre for Asian Legal Studies for their support of my work on Asian law. I am also grateful to Professor Albert Chen at University of Hong Kong for his productive instruction. Another version of the Vietnam part of this paper was presented at the Vietnam Update 2013 Conference held at Austral- ian National University from 31st October to 1st November 2013. I would like to thank John Gil- lespie, Phillip Taylor and the attendants of the conference for their useful comments. 67 NGOC_FINAL FOR PUB (DO NOT DELETE) 8/23/2015 3:21 PM 68 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 37:67 INTRODUCTION Constitutionalism is a legally limited government.1 Today, under modern Western liberal form, constitutionalism–consisting of funda- mental elements of popular sovereignty, prescriptive constitution, rule of law, separation of powers and other checks and balances, protection of individuals’ liberal rights, judicial review, and judicial ence2–has achieved a global expansion.3 After the fall of the Berlin Wall, communist regimes in East Eu- rope have gradually transformed to new democracies committed to fun- damental principles of liberal constitutionalism.4 One of the distinctive transitional modalities in East Europe is the return to the constitutional order predating the domination of communism, the phenomenon scho- lastically characterized as “restoration constitutionalism.”5 Different from post-communist East European states, China and Vietnam, former members of the Soviet bloc, have consistently re- mained in the Soviet-style polity ruled by a communist party. But the notable phenomenon relatively resonant with transitional constitutional- ism in post-communist East Europe is that past liberal constitutional values have now been employed in China and Vietnam to struggle for constitutional reform, which challenges the communist status quo. Be- fore the triumph of communism, there existed liberal sources of consti- tutional thinking and practices in China and Vietnam. During the first half of the twentieth century, constitutional experi- ence in the two nations was basically shaped by fundamental concepts of Western liberal constitutionalism, such as a written constitution, pop- ular sovereignty, representative government, liberal rights, and the sepa- 1. CHARLES HOWARD MCILWAIN, CONSTITUTIONALISM: ANCIENT AND MODERN 24 (2005) (“Constitutionalism has one essential quality: it is a legal limitation on government.”). 2. Louis Henkin, A New Birth of Constitutionalism: Generic Influences and Generic De- fects, 14 CARDOZO L. REV. 533, 535-36 (1993). 3. Jiunn-Rong Yeh & Wen-Chen Chang, The Changing Landscape of Modern Constitu- tionalism: Transitional Perspective, 4 NAT’L TAIWAN U.L. REV. 174 (2009). 4. See generally Jon Elster, Constitutionalism in Eastern Europe: An Introduction, 58 U. CHI. L. REV. 447 (1991). 5. To illustrate, the 1946 Constitution of Hungary was used as a model during the Hungari- an roundtable talks of 1989; the former Czechoslovakia relied on the Constitution of 1920 as the basis for drafting the “new” Constitution after the revolution; Latvia restored the effect of the 1922 Constitution since May 1990; the 1938 Constitution was the basis for Estonia’s constitu- tional draft; and the Constitution of 1921 was the basis for constitutional drafts in Georgia. Ruti Teitel, Transitional Jurisprudence: The Role of Law in Political Transformation, 106 YALE L.J. 2009, 2069-70 (1997); see also Andras Sajo, Preferred Generations: A PARADOX OF RESTORATION CONSTITUTIONS, 14 CARDOZO L. REV. 847, 854-855 (1993). NGOC_FINAL FOR PUB (DO NOT DELETE) 8/23/2015 3:21 PM 2015] Restoration Constitutionalism and Socialist Asia 69 ration of powers.6 Recently, these liberal constitutional values have been summoned in the call for constitutional reforms. Particularly in Vietnam, where the party and the state have initiated the plan to com- prehensively revise its 1992 Constitution, culminating in its replacement by the 2013 Constitution, the call for a return to some liberal values of the 1946 Constitution – the first constitution of the nation – has been forceful.7 In this paper I used the Vietnamese experience to explore the possibility of restoration constitutionalism in the course of constitution- al development in socialist Asia. The focus of this paper is the phenomenon of “restoration constitu- tionalism,” understood as “a process under which, as part of the liberal- izing agenda, the transitional society is sought to be returned to the con- stitutional order that prevailed before the eclipse or collapse of democracy and/or the rule of law, rather than being faced with the pro- spect of fashioning a new constitutional order.”8 The percept of this pa- per is that radical rupture is not a necessary condition for the operation of constitutionalism; instead, it is constitutional continuity that enables the viability of constitutionalism. Discussing the manifestation of the discourse of restoration constitutionalism in China and Vietnam in that framework, this paper argues that restoration constitutionalism presents the new path of the development of constitutionalism in socialist Asia. This paper is structured as follows: Part I justifies restoration constitu- tionalism; Part II considers the implicit trend toward restoration consti- tutionalism in Chinese constitutional discourse; Part III delineates and analyzes the rise of restoration constitutionalism as a form of discourse in contemporary Vietnam; and Part IV concludes. I. RESTORATION CONSTITUTIONALISM A theory of constitutional foundationalism, elaborated by Ameri- can constitutionalist Bruce Ackerman, has provided a powerful frame- work for conceptualizing the nature of constitution-making. It holds that constitution-making is the final stage of liberal revolutions, a revolu- tionary “constitutional moment” of rupture from the past, and founda- 9 tional for a new constitutional democracy. Therefore, the discontinuity 6. See Bui Ngoc Son, The Introduction of Constitutionalism in East Asian Confucian Con- text: The Case of Vietnam in the Early Twentieth Century, 7 NAT’L TAIWAN U. L. REV. 429-30. 7. Thu Ha, Cựu chủ tịch Quốc hội bàn chuyện sửa Hiến pháp [Ex-President of the National Assembly Commenting on Constitutional Amendment], TUAN VIETNAM.NET (Jun. 16, 2010), http://www.tuanvietnam.net/2010-06-24-cuu-chu-tich-quoc-hoi-ban-viec-sua-hien-phap. 8. Venkat Iyer, Restoration Constitutionalism in the South Pacific, 15 PAC. RIM L. & POL’Y J. 39, 40 (2006). 9. Bruce Ackerman, Constitutional Politics/constitutional Law, 99 YALE L.J. 453, 488 NGOC_FINAL FOR PUB (DO NOT DELETE) 8/23/2015 3:21 PM 70 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 37:67 is the quality of revolutionary constitution.10 Constitutional foundationalism has been theorized on the data of eighteenth century constitution-making, especially of the United States, and hence may not be valid for understanding constitution-making and constitutionalism
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